Today we would probably call this action tort for loss of consortium by seduction. In 18th-century England and Massachusetts, the cuckold’s remedy was an action of trespass for an assault on his wife, better known as “criminal conversation,” or just “crim. con.”1 Adams represented the defendant Little in the Inferior Court, and the testimony recorded in his minute fairly states the story. Further details emerge from the file of the divorce suit which Dougherty was prosecuting simultaneously with his action at law.2
Dissatisfied with the £60 verdict in the Inferior Court, Dougherty appealed to the April 1768 Charlestown Superior Court; there, with Adams no longer representing Little, the jury awarded Dougherty £400 and £27 4s. 9d. costs.3 Meanwhile the grand jury indicted Mrs. Dougherty and Little twice, once for adultery and once for lewd, lascivious, and wanton behavior.4 Finally, the Governor and Council, sitting in exercise of their exclusive jurisdiction in divorce, on 15 June 1768 granted Dougherty an uncontested divorce a vinculo, a copy of the Superior Court judgment being a part of the evidence “by which it appears that the said James [Dougherty] hath fully proved his libel.”5
1. F. Buller, Introduction to the Law relative to Trials at Nisi Prius 26–28 (London, 1772); 3 Bacon, Abridgment description begins Matthew Bacon, New Abridgment of the Law, London, 1736–1766; 5 vols. description ends 581.
“The proponent doth alledge that in August A.D. 1764 he sailed for the Island of Newfoundland and that he continued there ’till the month of December last.... That when your proponent returned from the said Island of Newfoundland, to his great grief he found his said Wife Mary big with Child, and has great reason to suspect that the said Thomas Little is the Father thereof your proponent not having cohabited but been absent from his said Wife for the space of three years last past.” The libel was filed 26 Feb. 1768. SF 129750.
3. Min. Bk. 88, SCJ Charlestown, April 1768, N–13; Rec. 1768–1769, fols. 163–164; SF 147615.
4. SF 147605. No record of the disposition of Mrs. Dougherty’s case seems to have survived. Little’s case was called at the Cambridge Superior Court, Oct. 1768, but he defaulted and was fined £200 and costs. Min. Bk. 88, SCJ Cambridge, Oct. 1768, N–15.
5. Divorce Recs. 45–48 (1768). See also Boston Gazette, 25 April 1768, p. 3, col. 2. As to the divorce jurisdiction see No. 22. In England in a proceeding for divorce a vinculo in the House of Lords (No. 22, text at note 7), the applicant had to establish that he or she not only had obtained a divorce a mensa in the ecclesiastical courts but had recovered for criminal conversation at law. 1 Holdsworth, History of English Law description begins William Holdsworth, A History of English Law, Boston and London, 1922–1952; 13 vols. description ends 623.